Supreme Court

For the Third Time, the Roberts Court Rescues Obamacare

Without a mandate penalty, the challengers had no standing.


For the third time under Chief Justice John Roberts, the Supreme Court has rejected an existential challenge to the Affordable Care Act, the health care law commonly known as Obamacare. In a 7–2 decision released today, the Court ruled that the challengers—a group of red-state attorneys general who argued that the entire law should be struck down—did not have standing to sue.

The case, at heart, was essentially an elaborate legal troll of Roberts, built on nearly a decade's worth of tortured legal reasoning and statutory gymnastics. Much of that history came into play in today's ruling.

Following the passage of Obamacare in 2010, the law faced its first major Supreme Court challenge, focused in part on the individual mandate, which challengers argued was unconstitutional because, under the Constitution's Commerce Clause, Congress could not require individuals to engage in commerce.

Roberts ruled that the health law's individual mandate provision, which at the time imposed a penalty for failing to carry sufficiently robust health insurance, was constitutional—but only as an exercise of the tax power, not as a command. Essentially, Roberts ruled that Congress couldn't command people to maintain health coverage, but it could tax them for failing to do so. It was, to put it mildly, a fine distinction.

That distinction, however, became relevant following the passage of the Tax Cuts and Jobs Act, a Republican bill that largely cut taxes, in 2017. Republicans aimed to eliminate the mandate, but because of the rules of the reconciliation process used to pass the tax bill, they settled for zeroing out the penalty—the tax—instead. That left Obamacare with a mandate that imposed no penalty for noncompliance. Technically, it was still on the books, but it was entirely toothless.

As a result, a group of red-state attorneys general, led by Texas, challenged the provision, arguing that a mandate that was only constitutional as a tax could no longer stand if there was no penalty for noncompliance. The essential feature of a tax is that it raises some amount of money; a mandate without a penalty was no tax at all. This part of the argument was, in my view, essentially sound.

But the red-state attorneys general took the argument even further, taking some signing statements affiliated with the original 2010 statute that said the mandate was an essential feature of the law, to claim that without the mandate, the whole law must fall. There was something somewhat amusing about this part of the argument, in that it attempted to take Roberts' original decision upholding the health law and flip it around into an argument for taking down the law. If nothing else, it was an attempt to force Roberts to reckon with his own too-clever ruling.

But the underlying argument was deeply flawed. The signing statements from the law's 2010 passage didn't have any bearing on the post-2017 law. By zeroing out the mandate penalty, Congress was in fact quite clear about its intentions, and its belief that the law could stand without a functioning mandate. Even if the zero-dollar mandate was unconstitutional, the rest of the law could still stand.

Even some of the fiercest critics of Obamacare have rejected the Texas-led argument. Notably, Cato Institute Health Policy Studies Director Michael F. Cannon and Case Western Reserve University Law Professor Jonathan Adler, whose work informed a previous Supreme Court challenge to the case, thought it didn't stand up to scrutiny. 

There was another wrinkle, too. How could a nonexistent penalty result in harm? The toothless mandate caused no obvious injury to anyone. Without harm, there was no clear legal standing to sue. A law has to have some effect for it to be the subject of a challenge; the zeroed-out mandate had none. Yet in the original suit, two Texas consultants claimed they felt compelled by the mandate. As University of Michigan Law Professor Nicholas Bagley wrote in 2018, "There is no good legal argument for thinking that two guys from Texas have standing to challenge a law that doesn't require them to do anything."

The states, meanwhile, argued that the toothless mandate would somehow cause more people to enroll in state health insurance programs, adding to their fiscal burden. Once again, it wasn't clear how a mandate with no penalty for noncompliance would result in behavior changes. As Cato's Cannon wrote in 2019, "Since Congress zeroed out the mandate penalty, the mandate no longer injures anyone. Indeed, there is no longer a use of governmental power for plaintiffs to challenge."

Several lower court judges accepted parts of the challengers' arguments anyway, with one ruling that the law should be struck down entirely. Over the last several years, the case has proceeded through the system, finally landing at its inevitable stopping point, the Supreme Court.

Despite loud warnings from prominent Democrats that the health law's future was at stake, it was relatively clear, after last year's oral arguments, that the Supreme Court wouldn't buy into the bulk of the challengers' case.

As it turns out, the High Court chose not to reckon with the deeper arguments in play at all. Instead, four GOP-appointed justices—John Roberts, Clarence Thomas, Brett Kavanaugh, and Amy Coney Barrett—joined Democratic appointees Sonia Sotomayor, Elena Kagan, and Stephen Breyer, who penned the ruling, in rejecting the case on standing grounds.

The original Texas duo who challenged the law, Breyer writes, don't have standing to challenge the mandate "because they have not shown a past or future injury fairly traceable to defendants' conduct enforcing the specific statutory provision they attack as unconstitutional." There is no penalty for noncompliance, and therefore the mandate is "unenforceable." Similarly, Breyer says, the states failed to prove that an unenforceable mandate would result in additional sign-ups to state health programs: "Neither logic nor evidence suggests that an unenforceable mandate will cause state residents to enroll in valuable benefits programs that they would otherwise forgo."

In some ways, this was the least interesting possible way for this case to resolve: no standing. No case. The end.

But there is at least some element of intrigue here in the open disagreements between the Court's conservatives. In a dissent written by Justice Samuel Alito and joined by Justice Neil Gorsuch, Alito calls the decision "the third installment in our epic Affordable Care Act trilogy" and says that, once again, with the health law in jeopardy, "the Court has pulled off an improbable rescue." Alito accuses the Court of punting on the core constitutional issues around the taxing power, writing that "instead of defending the constitutionality of the individual mandate, the Court simply ducks the issue."

To which Thomas replies, in a concurrence, that the Court's responsibility is to the specifics of the case: "Whatever the Act's dubious history in this Court, we must assess the current suit on its own terms. And, here, there is a fundamental problem with the arguments advanced by the plaintiffs in attacking the Act—they have not identified any unlawful action that has injured them…Today's result is thus not the consequence of the Court once again rescuing the Act, but rather of us adjudicating the particular claims the plaintiffs chose to bring."

This is notable since Thomas has previously voted to strike down the health law, and indeed he ends his concurrence by noting that the previous Supreme Court decisions were mistakes. "The plaintiffs failed to demonstrate that the harm they suffered is traceable to unlawful conduct. Although this Court has erred twice before in cases involving the Affordable Care Act, it does not err today." Obamacare remains bad policy in many ways, but this was a bad case, and so I am inclined to agree.

NEXT: The G7 Agrees To Create a Global Tax Cartel

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  1. I will reiterate again.

    If the USSC can not identify a subject that would have standing to a law, they should allow a State or some other individual standing to challenge.

    Here the hide behind the no standing issue to basically hide the terrible construction of Roberts when he originally saved ACA.

    1. I think Justice Thomas is correct. The first case was logically tortured, and essentially enshrined and condoned outright falsehoods written into the text of the law itself. It was a travesty.

      However, at this point, the case is about a mandate that’s essentially a “pretty please”. The only injury would be the dishonor of having broken a law. However, I don’t think that’s sufficient to qualify.

      At this point, the ACA is simply bad policy. It’s a set of half-thought-out requirements that ignored necessary economics in insurance and caused the cost of health insurance to spike while addressing none of the root causes of increasing health care cost. Instead, it exacerbated one of the largest: accounting and billing overhead.

      But bad policy needs to be corrected by Congress, not the courts.

      1. The only injury would be the dishonor of having broken a law. However, I don’t think that’s sufficient to qualify.

        I suppose one could be found guilty in a criminal court for violating a law, with the only penalty being that you’d have a criminal record.
        That criminal record might then preclude you from certain avenues of employment.

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    2. This is the same as income tax. Though it was illeagaly enacted any attempt to get rid of it or challange it will be met with fytw

      1. It’s not illegal if the law allows it.

        1. It is illegal when 3 states didn’t vote to ratify the income tax ammendment and congress said it ment yes, and when 2 states voted no and congress changed it tk yes

          1. Philander Knox: “hmmm well, I guess it’s ratified.”

          2. Some random dude on the internet doesn’t get to decide what law is.

            1. Yea right, that guy Tony, I’m telling ya. Super annoying character, always thinks the law will bend to his infantile whims.

              1. Tony is the smartest and the only one qualified to tell us how to live our lives. So say we all.

              2. I’m concerned that we have a bunch of people here spouting off on what they think law should be and mistaking that for what law is.

                Law doesn’t have to make sense. It just has to have an army.

                1. You should not bother with your concern trolling. You’re too stupid to understand the discussion.

                  Go back to licking the dried loads off the bathhouse floor. This is a discussion amongst Americans about real subject matter. Not shoe shopping or how to be a better bottom.

        2. That’s the point numbnuts. It was illegally enacted, just like ACA.

          1. Not according to the legal system.

            1. “Some random dude on the internet doesn’t get to decide what law is.”
              Does it hurt to be that stupid? Your cognitive dissonance needs medical attention.

              1. That’s pretty much the core of pathological narcissism. One popular way to divorce reality. The other one would be schizophrenia.

                1. I always wonder if people like Tony are genuinely aware of it or not. Is it malicious or are they really that messed up? Should we pity them or just tell them to fuck off?

                  1. Both.

                  2. I think they have their moments of self-awareness. They are way more functional than schizophrenics.

                    But whenever any meaningful insight threatens to come about, they know how to immediately bury it under massive waves of infantile, sore aggression. Then their life-narrative will stand defended and seemingly unopposed.

                  3. So when in doubt i would prefer fuck off over pity.

              2. I’m not saying law is whatever I say it is.

                I’m saying law is whatever the supreme court says it is.

                1. That’s not how it works.

                  1. I dearly hope this is an objection based in the nuances of the American system and not a reiteration of the sadly common sentiment in these parts that law is whatever the nearest Ayn Rand fanboy believes in his his cockles.

                    Come to think of it, that’s what you think science is too huh?

                    1. No, you fuck-wit.
                      It is based on the first article and section of the Constitution, that doesn’t grant the Supreme Court any legislative authority.
                      That they have failed to look to Article 1, Sections 8, 9, and 10, to determine whether the Congress has power to enact something like 0blamocare, is evidence that they all have violated their oath of office and should be removed, for bad behavior.
                      It is sickening how questions of Constitutionality end up revolving around minutiae, instead of the clear precepts of the founding document.

                    2. Science is whatever the consensus says it is. Fuck the scientific method. – Tony

            2. Tony, you’re not capable of understanding the legal system. So go away.

    3. Bingo. Standing is a bad principle which only serves to protect the government and hurt the citizens. It needs to be abolished.

      1. Lol wut? So any fanatical coot can go to court and get law struck down because he doesn’t like it?

        1. Any fanatical coot should be able to go to court and get a law struck down because it is un-constitutional, regardless of whether or not that law specifically impacts him. Yes. That absolutely should be the way it is.

          Wouldn’t it have been better if Anti-Sodomy laws were taken to court and shot down *before* some poor bastard was being punished for it?

          1. We should give Tony a certificate that proves he’s the smartest. Maybe then he’ll go away.

            1. In crayon. He will relate better to that.

          2. The level of ignorance of basic facets of the concept of a legal system is starting to make me seriously question your guys’ other high-minded ideas.

            1. Guys pay attention to Tony. You need to do what he says; he’s smarter than all of you.

              1. I just took 8th grade civics.

                1. “just”. Lol, that explains a lot.

                2. Did you fail it like you failed basic math, reading comprehension, and ethics?

            2. Tony, you’re just a valid commie faggot that doesn’t have a real technical understanding of anything simple, let alone our legal system.

              So go back to doing what you do best, being a raving faggot.

          3. Without some kind of standing criterion where judges are asked to look at the application of the law to a specific case, judges essentially become an additional, unelected legislative branch.

            1. What’s wrong with running any act of two branches of government past another to ensure that the Constitution isn’t violated by that law?
              Congress had no Constitutional power to enact 0blamocare.
              0blamocare was rammed through, despite voters’ obvious objections to how it was being done – Massachusetts voted in a Republican senator, for Christ’s sake, to stop the Senate from having a filibuster-proof majority. Yet Harry Reid used parliamentary chicanery to “deem” it passed.
              The shellacking of 0blama’s House majority, mostly due to this travesty, being further proof of its unpopularity.

    4. Alternatively the Texas AG could learn how to write a case that does have standing. Isn’t it the plaintiff’s responsibility to show standing. It is not a hard concept and it is clear by the 7-2 decision that the Texas AG was not even close.

      1. Way to not understand the point.

        1. It’s kinda her schtick.

        2. That because you did not make a good point. It is not the USSC job to just hand over standing. It is the plaintiff’s job to establish standing. It pretty straight forward tell how you were injured and what the court can do to remedy that injury. The fact that the Texas AG has repeatedly run into this problem tells you they don’t know what they are doing.

          Remember the definition of insanity, “doing the same thing over again and expecting different results.”

          1. That’s not actually the definition of insanity.

            1. Yeah, I’ve always hated that saying. It’s not even close.

          2. When it comes to the government going outside its mandate, as expressed in the Constitution, EVERY citizen should have “standing”.

            “Lack of standing” is the courts way of expressing their cowardice of making the obvious ruling.

    5. I agreed wholeheartedly when somehow we didn’t have standing to sue Trump for breaching the emoluments clause.


      1. “Worthless”

        raspberrydinners newest signature.

      2. Not even close to the same thing, and Trump neVer did that. But hey, you’re a conniving lying communist traitor.

    6. Ya, it’s basically the fame with a lot of the surveillance crap. Who has standing (and knows it)? We should be able to challenge the constitutionality of a law on that basis alone, not based on “harm” especially since the courts often reject less concrete harms.

    7. Legal standing seems like a pretty basic principle of our legal system going back generations. It is what separates the judicial and legislative branches.

      1. That judges’ cowardice has been around “going back generations” doesn’t make it good for the law.
        It has become the judicial branch’s job to ensure that the other branches don’t violate the Constitution. Yet it frequently uses “standing” as a way to allow their cronies-in-totalitarianism to get away with running roughshod over our founding document.

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  2. Justice Thomas is a gem. What a fine mind. I literally laughed when I read this from his opinion, “Although this Court has erred twice before in cases involving the Affordable Care Act, it does not err today.” Way to tell it like it is.

    A century from now, legal scholars will be reading, and re-reading Justice Thomas’ opinions. His is truly an American story.

  3. The liberaltarian progtard coalition is jumping for joy as usual over the preservation of yet another permanent government program of deficit financed spending. Just one more stone on the path leading over the cliff.

  4. So if/when the penalty for the individual mandate is reinstated, can the states file suit again?

    1. Nope! They still won’t have standing. BECAUSE REASONS.

      1. You mean the Governor of Texas doesn’t have standing?


        1. Winner

        2. dude lol. stand up, Chuck!

    2. it is unlikely the penalty will be reinstated. The ACA is more popular than it has ever been. There are likely a few recalcitrant people who chose not to get insurance. While these people do pose a cost to the nation when we have to pick up their bills, it is like not enough to get a reinstated mandate.

      1. You only pay if people with no insurance can’t settle their bill.

        At this point, I’d rather go without insurance since It hasn’t helped my out of pocket much at all. But you still wouldn’t be paying for my health care.

        1. As I noted those willing to skip insurance is likely small and in good health. The greatest danger is some catastrophic event, like an accident or cancer. The other side of the equation is building equity in insurance. Young healthy people pay more than they use but in doing so build equity for the days when they will use more than they pay. The current arrangement allows the young person to skip the first period and jump into insurance when they need it. The lack of equity results in overall higher costs.

          1. Build equity?? Health insurance is pure out of pocket cost month to month. There is no accrued “equity”. Miss a payment and you’re SOL. The fuck are you blathering about?

            1. A social safety net works by the healthy paying for the care of the sick and the young lying for the upkeep of the old. No point in beating around the bush about that.

              Of course, the reality is that the old and sick are relatives of the young and healthy, so apart from sociopathic libertarians perhaps, we tend to bear those costs anyway. A social safety net is about making that system more predictable and secure for everyone so that we can participate freely in the marketplace and become entrepreneurs and what not without risk of it all falling to shit because our mom gets cancer. That’s not an efficient market, that’s just Darwinian chaos.

              1. This from a supporter of murderous regimes and laws.

              2. Honestly, a large share of the population doesn’t want to pay for perpetual alcoholics and drug addicts, Tony. And thats okay. Go become old and sick somewhere else.

              3. So many vague baseless claims from a known sociopathic liar. He really should kill himself.

          2. From each according to his ability, to each according to his needs, comrade M4E.

            1. Worked for the Acts of the Apostles did it not?

              1. That’s a quote from Marx, comrade.

              2. Small congregations may be able to sustain that, until someone comes along that’s perfectly able but just doesn’t feel the need to contribute.

                You know, like Bernie when he was on the commune.

          3. “…The other side of the equation is building equity in insurance…”

            It bears repeating.
            This is either:
            1. A parody account
            2. The cat walking on the keyboard.
            3. Written by someone whose maturity was interrupted at age 10
            4. A fucking ignoramus.

  5. So states don’t have standing. Citizens don’t have standing. Who does?

    1. Nobody!! BECAUSE REASONS

    2. Those state and person who can show injury and show that the Court can resolve that injury. Pretty simple, you wonder why the Texas AG wasn’t smart enough to think of that and write a complaint to meet the requirements.

      1. If it is pretty simple, please provide an example of a person with standing for this case.

      2. My insurance costs nearly 215$/month more now for crappie coverage than I had pre aca woth the same provider. Is $2,400 per year enough of an injury?

      3. The progtards flexed their muscle, last summer, and government did nothing to stop it.
        The SC, even the formerly brave Clarence Thomas, took note and ruled to keep them from being “protested” against.
        P.S. To all you cunts that whine about the police having “qualified immunity”, those same courts will dismiss any suit against government for not protecting them from the ravages of the progtard “protests”, because they also have “qualified immunity”.
        So do judges.

      4. All Americans are damaged by this unconstitutional law. Myself included, I have standing. Robert’s is a compromised piece of shit.

  6. There was another wrinkle, too. How could a nonexistent penalty result in harm?

    What am I missing here? The penalty isn’t “non existent”, it’s just never applied, or the penalty is what, $0?

    A penalty of $0 is still a statutory penalty, and its existence means that it can be tweaked at any time, because the mechanism is in place. Also, can a penalty of $0 be weaponized in some other fashion? Can the government issue a penalty of $0 and then hound you to the end of the earth until you’ve settled said penalty?

    1. Great point! When did Attorneys General become attorneys general?

    2. You’re not missing anything, unless you missed that “lack of standing” means “we don’t want to have to face the progtard response”.

  7. It’s interesting that this decision rests on an assumption that people only follow laws due to the risk of facing the punishments attached to them. What does that say about the American legal system? Or about Americans themselves?

    1. It’s over your head. Someone will translate the edicts of our judicial system to you at some point, and maybe you will understand that it is above average. Please tell us more about your perfect ‘legal system’ and your ‘people themselves.’

      1. No reason to assume I was talking about myself. Chill out.

        I’m saying that there could be at least some people out there who make an effort to never break the law. Those people have been forced to purchase insurance, even if the penalty is zero.

  8. Second time the Texas AG has hit a “standing” road block. Maybe time for them to take some remedial law school course and sharpen up there writing skills.

    1. >>sharpen up there writing skills


      1. Them there writing skills?

      2. M4E never claimed to be smrt. Although she did claim to be a moderate, which is hilarious since she’s a lefty.

      3. Guess I need a brush up also. My bad.

    2. You really are a fucking dummy. Typical of a dirty Marxist like you.

  9. Roberts rewrote the law.

  10. On one hand, it’s kind of sad. If people ever actually had to suffer under Republican rule, maybe they’d wake the hell up.

    Remember, these are the same morons who love the ACA but hate Obamacare.

    1. Hey admins/mods! Please make a way to undo flagging a comment, I fat-fingered this while scrolling and this is not the first time this has happened to me on mobile. It’s just gumming up the reporting system for you.

      1. Nothing was lost by flagging him.

      2. Done the same here multiple times. Doubt an admin will ever read your suggesting about having an undo function. Maybe if all of us flag your comment it will get some attention!!!

    2. ACA is yet another unfunded welfare scheme. Who doesn’t like free money?

      1. Who is stupid enough to believe they’re ‘free’? Why, berrydinners is that stupid!

    3. I hate both. And you. You really should be put to death for your treasonous beliefs.

  11. Can’t beat em, join em. I’m all in on healthcare stocks. Too bad the millennial and zoomer generation and non healthcare affiliated woke corporations (although they’re probably throwing money at these ACA stocks too) like yoy inflation , but oh well. We’re all crony’s now.

  12. The government class protects the government class.

    Money, leisure, and power the Government Class is looking very like the old aristocracy, and We the People their serfs. A Government Class of pseudo-aristocrats, with at least as much power and privilege as the old aristocrats, has reversed the gains of private individuals put to parchment by Magna Carta and the Declaration and to prosperity by laissez-faire capitalism. This class from its most petty new aristocrats, the beneficiaries of programs like Obamacare and low level government non-workers, to its highest, a Chief Justice and the “croniests” using government to crowd out capitalists, are the same oppressive and parasitic creatures as aristocrats of old, even if they are not in high stockings and silk breeches.

    1. “The government class protects the government class.”

      Tell us about mean tweets again, TDS-addled asshole.

  13. “There is no good legal argument for thinking that two guys from Texas have standing to challenge a law that doesn’t require them to do anything.”

    But the law does in fact require them to do something, it’s just that there’s no punishment for failing to comply with the requirement. What they seem to be arguing here is that you are free to disobey the law as long as there is no consequences for your disobeying the law, like running a red light as long as there are no cops around to see you or murdering an orphan. Who’s to know that you have committed a crime?

  14. They should go after the unconstitutional cost sharing deductions. Your wife, Suderman, lays this out 2017 in the following piece:

  15. I don’t get their legal theory at all. It seems to me the “harm” should be in the costs of coverage, not the penalty, or lack thereof, for not getting coverage.

    It would go something like this…

    During the passage of Obamacare, the justification for the penalty/tax was that in order to cover the costs of the subsidies to the lower income and in order to cover pre-existing conditions, they needed young healthy people to be covered. If a person didn’t get (approved) coverage, they would be penalized (pre-2017, post equals taxed) to help cover those costs.
    Once you remove the penalty/tax, the young and healthy began to drop coverage. This resulted in increased costs for everyone who was still buying coverage, which would also increase in their coverage of “their fare share”.
    All of that is demonstrable and provable, so why wouldn’t that be your “harm”?

    ‘of course writing that into a competent legal complaint is a bit trickier.

    1. If Republicans cared about that, they could have legislated so.

      Since they only cared about scoring one for Team Hannity, they are responsible for the harm they deliberately caused, which is of course the prerogative of Congress.

      If one could sue over healthcare being too expensive due to market forces as manipulated by Congress, someone would have won that case 50 years ago.

      1. I don’t understand your point and the question had nothing to do with inflated costs or team red vs team blue.

        It was purely about about using the shifting of cost burden from a large group to a smaller group by eliminating the penalty and if you could use that hook to establish the “harm” needed to gain standing for the court.

        1. You’re engaging a pile of lefty shit who has, at best, a distant acquaintance with logic.

          1. It’s best to just beat him down. Just like Pedo Jeffy.

  16. Regulation of or anything at all to do with healthcare doesn’t appear as an enumerated power of the federal government in the constitution. Thus, by the 10th amendment, the entire law is clearly unconstitutional regardless of standing or taxing power arguments.
    The supreme court’s ability to discern what is and isn’t constitutional over the last century has become a complete disgrace. And Republican appointees of the last few decades are no exception.

  17. Are Trump-tards enjoying Trump’s judges as they prove themselves time and again to be part of the very swamp he claimed to be set on draining?

  18. Isn’t the future injury that Congress can simply reinstate the penaltax?

    I don’t think anyone intended for this kind of gamesmanship with SCOTUS. It’s beneath them as an institution.

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